Yoshino writes in New York Times Room for Debate about Iowa's gay marriage decision

Yoshino writes in the New York Times Room for Debate about Iowa Supreme Court's decision to strike down gay marriage ban

On April 3, the Iowa Supreme Court struck down as unconstitutional the state’s 1998 law limiting marriage to a man and a woman. Iowa is now the third state in the country, along with Massachusetts and Connecticut, to allow gay marriage. (The California Supreme Court’s decision allowing gay marriage was superseded by amendment).

Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, writes in the New York Times Room for Debate that the Iowa decision cannot be easily superseded by constitutional amendment and that, like the Connecticut court, the Iowa court chose a careful middle path on how much protection to give to gays.

“The California court gave gays the maximum amount of judicial protection possible (perhaps creating a backlash from some racial minorities who felt this diluted their civil rights), while the Massachusetts court would not commit to more than the minimum amount,” Yoshino writes. “The Iowa decision, like the Connecticut decision, splits the difference. It does not subject legislation burdening gays to the ‘strict scrutiny’ that legislation classifying on the basis of race triggers. But it does subject legislation burdening gays to something more than the highly deferential ‘rational-basis review’ drawn by ordinary legislation.”

Yoshino also notes that the three prior decisions were all 4-3 votes. The Iowa court’s decision, which repeatedly expresses pride in the state judiciary's civil rights record, was 7-0.

“Chief Justice Earl Warren strove mightily to get a unanimous opinion in Brown v. Board of Education so that the moral principle of desegregation would be accorded its full moral force,” Yoshino writes. “Given that he invokes Brown, one wonders how hard Justice Mark S. Cady, the author of the opinion today, struggled to find the words that would allow his court to speak – from the heart and the heartland – with one voice.”